Legislation — Supreme, Subordinate, Delegated & Codification — Jurisprudence Notes

Legislation — Supreme, Subordinate, Delegated & Codification

Every year a fat volume of new Acts rolls off Parliament’s press — laws on data, on companies, on the environment — each drafted, debated and enacted in months. Compare that with waiting decades for the right case to reach a court so a judge can lay down a rule. That speed and deliberateness is why legislation is the dominant source of law in every modern state.

What legislation is, and its kinds

Everyday hook: legislation is law made the way a factory makes goods — deliberately, to a plan, in advance of need. Legislation means the laying down of legal rules by a competent authority (the legislature); the word comes from legis (law) + latum (to set/bring). The rule so made is called enacted law or statute law.

Salmond distinguished legislation in the strict sense (declaration of rules by the sovereign legislature) from a broader sense that includes all law having its source in the state’s declared will.

The kinds of legislation:

A. Supreme legislation

Legislation by the sovereign (supreme) legislature itself — in India, Parliament and the State Legislatures. It is supreme because it is not subordinate to, and cannot be repealed, annulled or controlled by, any other legislative authority. (In India it is still subject to the Constitution and judicial review, but it is not answerable to any higher legislature.)

B. Subordinate legislation

Legislation made by an authority subordinate to, and dependent on, the supreme legislature — it draws its power from the supreme legislature and can be repealed by it. Its main forms:

Colonial / autonomous (historical) — laws made by a subordinate body under powers granted by the sovereign.
Executive legislation — rules, orders and notifications made by the executive under powers delegated by an Act (the most important modern form — see delegated legislation below).
Judicial legislation — rules of procedure and practice that superior courts make to regulate their own working.
Municipal / local legislation — bye-laws made by local authorities (municipalities, panchayats) for their area.
Autonomous legislation — rules made by autonomous bodies (a university, a company, a registered society) for their members.

C. Delegated legislation (the exam favourite)

Delegated (or subordinate) legislation is law made by the executive under authority delegated by a statute of the legislature. The parent Act lays down the policy and the broad rule; it then delegates to a minister or authority the power to fill in the detail by rules, regulations, notifications and bye-laws.

Why it is needed: the legislature has no time to work out endless technical detail; modern subjects (taxation, safety standards, public health) need expert and flexible rule-making that can be changed quickly without a fresh Act, and emergencies need swift action.

The dangers: it transfers law-making from the elected legislature to the un-elected executive, risking excessive and uncontrolled power. So it is controlled three ways:

Legislative control — the parent Act must lay down the policy; rules are usually “laid before” the legislature, which can annul them.
Judicial control — courts strike down delegated legislation that is ultra vires [beyond the powers granted] the parent Act, or that offends the Constitution, or that is manifestly unreasonable.
Procedural control — publication and, sometimes, prior consultation with affected persons.

The one thing that may never be delegated is the essential legislative function — laying down the policy and standards; that must remain with the legislature (the rule against “excessive delegation”).

D. Codification

Codification is the reduction of the whole body of law on a subject — whether scattered in statutes, precedents or customs — into a single, systematic, authoritative code (e.g. a Penal Code, a Contract Act). Merits: certainty, clarity, accessibility, uniformity. Demerits: rigidity, and a risk that the code freezes the law and cannot keep pace with new situations.

Is legislation superior to precedent and custom? (Always answer this — it is half the question.)

Over precedent: legislation is abrogative (it can make and unmake law; a precedent can only make); it is prospective and general (it declares rules for the future, in advance of the dispute, whereas precedent is made after the event, in deciding a case); it is authoritative and certain (found in a clear text); and it is comprehensive (it can deal with a whole field, while a precedent settles only the point before the court). Against: precedent is more flexible and practical, growing case by case out of real facts.
Over custom: legislation is deliberate and quick; custom is slow, uncertain in scope, and must satisfy strict tests before a court recognises it. Legislation can override any custom.

So legislation is generally regarded as the superior source — but it lacks precedent’s case-tested subtlety and custom’s roots in actual social life.

Salmond: “Legislation is that source of law which consists in the declaration of legal rules by a competent authority.”

In Simple Terms: Legislation is law made to a plan by the legislature. Supreme legislation is Parliament’s own; subordinate/delegated legislation is detail the executive fills in under a statute’s authority (controlled by the legislature and the courts); codification gathers the law into one code. Legislation outranks precedent and custom because it is deliberate, general, prospective and can both make and unmake law.

🧩 WORKED EXAMPLE — Spotting valid delegated legislation

Facts. An Act says “the Government may make rules to carry out the purposes of this Act” and fixes the policy. Under it, the Government notifies safety rules for factories. Separately, the Government tries by notification to create a new tax the Act never mentioned.

Rule. Delegated legislation is valid only if it stays intra vires the parent Act; the essential legislative function (policy, and the power to tax) cannot be delegated.

Apply. The safety rules fill in detail within the policy — valid delegated legislation. The new tax is a fresh essential legislative act the parent Act never authorised — ultra vires and void.

Conclusion. Detail may be delegated; the essential legislative function may not. Spotting that line is the whole point of a delegated-legislation problem.

flowchart TD
    LG["LEGISLATION<br/>law made by a competent authority"]:::root
    LG --> SUP["SUPREME<br/>Parliament / State Legislature"]:::leaf
    LG --> SUB["SUBORDINATE"]:::leaf
    SUB --> EX["Executive (delegated)"]:::leaf
    SUB --> JU["Judicial (rules of court)"]:::leaf
    SUB --> MU["Municipal / local bye-laws"]:::leaf
    SUB --> AU["Autonomous bodies"]:::leaf
    EX --> CTRL{"Controlled?"}:::dec
    CTRL -->|"Legislative + Judicial + Procedural"| OK["valid if intra vires"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef dec fill:#FFE8C2,stroke:#B45309,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

In re Delhi Laws Act (1951) — the foundational Indian case on delegated legislation: the legislature may delegate detail but not its essential legislative function (policy).
Vasantlal Maganbhai v State of Bombay (1961) — delegation is valid so long as the legislature lays down the policy and does not efface itself.
Hamdard Dawakhana v Union of India (1960) — delegated legislation struck down for want of guiding policy (excessive delegation).

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